ILLINOIS POLLUTION CONTROL BOARD

March21,

1996

ESG WATTS,

INC.,

an Iowa Corporation,

)

PCB

94-243

Petitioner,

)

94-306

)

94-307

)

94-308

)

94-309

ILLINOIS ENVIRONMENTAL

)

95-133

PROTECTION AGENCY,

)

95-134

)

(Consolidated)

Respondent.

)

(Permit Appeal

Land)

DISSENTING OPINION

(by

G.T. Girard and E.

Dunham):

We respectfully dissent from the majority opinion

and order in this

matter

The record

in this

consolidated proceeding does not

support the Agency’s denial pursuant to

Section 39(i)

of the Act of several permits based on ESG Watts’ prior history as a landfill operator.

agree with the dissenting opinion of Board mcmbcr Mcycr,

but wc also believe that the

sole

legitimate rationale for the Agency denial of ~pypermit under Section 39 ofthe Act is the

probable violation of the Act or Board Regulations.

The

denial ofa permit under

Section 39(i)

of the Act is no exception.

The plain language of Section 39(i) of the Act allows the Agency

include in its evaluation of an operator’s history

administrative citations and circuit court

cases where the adjudicated violations

are

for facilities other than the specific facility at issue

in a permit application.

However, denial of a permit for prior bad acts obviously

is intended

to prevent

future

bad acts,

and

cannot be applied by the

Agency or the

Board to punish an

operator for those prior adjudicated

violations.

In previous cases before the Board (People v.

James Watts, PCB 94-127 (November 3,

1995)) and the circuit courts (People v.

Watts

Trucking, No. 9l-CH-242

(Cir.

Ct.

Sangamon Cty February 2,

1994)), the Agency

has tried

Unsuccessfully to have the operating permits of ESG Watts revoked.

Ineach adjudieatcd ease,

they failed.

The Agency is now attempting to

add to the penalties already assessed by denying

permit renewals at a facility that has beenremarkably free of violations for a period of

to 6

years.

This is far beyond the Agency’s

authority and is among the most draconian penalties in

the arsenal of the Agency.

(IEPA v.

IPCB, 252 Ill.

App.

3d 828,

624 N.E.2d 402 (3rd Dist.

1993).)

Section 39(i) requires the

Agency to evaluate the operator’s history

before granting or

denying a permit.

Clearly, the legislature intended that the entirety of an operator’c record he

examined prior to the

issuance of a permit.

However, in this case it does not appear that the

Agency examined the entirety ofthe operator’s experience.

In fact, it is not clear from the

record before the Board what the Agency did consider.

The most oft-repeated phrase to

describe the Agency’s analysis in this Section 39(i) review was that the decision to deny

the

permits was made “collectively”.

(Tr.

57-59,

62-63,

65,

71,

75-79,

83,

88 and

133.)

Mr.

Bakowski did testify that the administrative citations were

examined

“collectively” by the

Agency for the severity and number of violations.

(Tr.

at 62-64.)

However, when asked if a

certain number of violations were necessary to trigger a permit denial based on Section 39(i),

the Agency indicated there was not a specific number.

(Tr.

at 69.)

Mr. Bakowski testified

that the Agency had not examined the individual citations and could not state whether or not

the citation violations had been abated.

(Tr. 61-63.)

The Agency also testified that it considered the severity of the violations

in the circuit

court case.

However, when asked if the Agency considered the efforts

to abate

the violations

the Agency said that it had considered the fact that “without reasonable efforts of enforcement

that the subjectcompany wouldn’t have done it”.

(Tr.

at 73.)

The Agency also testified that

it had not reviewed each point in the circuit court case but rather looked at the points in the

aggregate.

The Agency indicated that the decision to deny the permits was made

“collectively” by the Agency.

(Tr.

57-59,

62-63,

65,

71,

75-79, 83,

and

133.)

The

Agency also testified that

in making the collective decision the Agency considered comments

from different

sections within the Agency.

However, the comments which were considered

for all seven permits were only in the Agency’s record for the permits in PCB 94-243.

(R. 94-

243

at 31-48;

Tr.

at 98

and 102.)

Thus, even though the majority suggests that the Board

must review the Agency’s analysis in a Section 39(i) denial,

we are unable to determine what

analysis the Agency performed.

Further, the fact that these permits are all renewal permits

is significant.

The permits

at issue are supplemental waste stream permits that allow ESG Watts to accept special, non-

hazardous

waste into the Taylor Ridge landfill.

These permits have been in force for a period

of years,

and the waste streams have been handled at the Taylor Ridge facility without

violation for some time.

Since the petitioner has received these wastes, and handled them in

accordance with Board regulations for some time,

the petitionerhas demonstrated that the

permits can be issued without causing violations ofthe Act

or Board regulations.

The Agency

does not enter any evidence that the past acts of the petitioner are expected to

affect the good

operating record ofthe Taylor Ridge facility, or that the issuance ofthese permits will,

in any

way, cause a violation ofany provision of Illinois environmental law or regulation.

The

Agency has given no

standard of review, guidance document,

regulation or other objective

rationale as to

why this operator, and not every other operator with a history ofviolations at

~j~ysite should be deniedpermits,

whether at the site of prior violations,

or at a site that

operates violation free for over half a decade.

It is true that, for Section 39(i) to have any

force or effect,

the acts of an operator at one facility may be considered when the operator

seeks permits at another facility.

If ESG Watts were seeking permits

to open a new landfill,

the Agency could legitimately claim that the past inability to follow regulations was a serious

impediment to

their issuance of

permits.

Where, as here, the petitioner has a record of

compliance at the particular facility for which the permits

are sought, the record of the facility

should factor heavily in the analysis;

not solely

the record of the operator.

The existence of single circuit court case is not sufficient to find a history of

repeated

violations.

We believe that it is particularly true in this case.

The circuit court did

fmd against

ESG Watts on

all twelve counts.

However,, the court also found that ESG Watts was abating

the

violations

and the

court specifically denied a permanent injunction against ESG Watts.

Thus, the court was not willing

to permanently close the facility

in the enforcement action.

The totality of administrative citations also

do not warrant permit denial.

Nineteen

administrative citations for three facilities over a nine or ten year period averages to

less that

one administrative citation per facility per year.

Because administrative citations are like

“traffic tickets”, we do not see that such a record is excessive.

More importantly,

the record

does not establish when the Agency would deny the next permit application from a different

operator with the same number of administrative citations,

or even what number of adjudicated

violations would trigger a Section 39(i) review.

For these reasons,

we respectfully dissent.

G. Tanner Girard

Emmett E. Dunham II

Board Member

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above dissenting opinion was filed on the

/7ZZ

day

of _____________________,

1996.

44.

Dorothy M. ~dnn~ Clerk

Illinois

Polh~JAonControl Board